Mr Van Hang Truong v Elawar & Sons Mechanical Repairs

In the matter of Mr Van Hang Truong against Elawar & Sons Mechanical Repairs, the Fair Work Commission addressed an application by Mr Truong to have his unfair dismissal claim heard out of time. The dispute arose when Mr Truong was dismissed from his employment and subsequently sought to file a claim of unfair dismissal after the statutory time limit had lapsed. Mr Truong contended that he was not fluent in English, did not have access to a personal computer, and was unaware of the time constraints for lodging such a claim.

The primary legal issue before the Commission was whether the applicant could be excused from the statutory time limit for filing his claim under the Fair Work Act. The Commission had to consider whether Mr Truong’s circumstances constituted 'exceptional circumstances' warranting an extension of time. The applicant argued that his lack of English proficiency, limited access to technology, and consequent ignorance of the statutory deadline should be taken into account. The employer, Elawar & Sons Mechanical Repairs, submitted that the applicant's personal limitations did not establish the requisite 'exceptional circumstances' necessary for an extension of time.

In its decision, the Commission noted that while it had the discretion to extend time in cases of 'exceptional circumstances', it was reluctant to do so in this instance. The Commission found that, although Mr Truong’s circumstances were indeed challenging, they did not sufficiently distinguish his situation from others who face similar difficulties in understanding and navigating the legal system. The Commission concluded that the applicant had not demonstrated that he met the threshold for 'exceptional circumstances', and therefore, the application for an extension of time was dismissed. The unfair dismissal claim was denied as a result.

The Commission's final order was that the application by Mr Van Hang Truong to extend the time for filing his unfair dismissal claim was dismissed, and the claim itself was not entertained.